An administrative law judge (ALJ) for the Division of Unemployment Insurance of the
Department of Workforce Development issued a decision in this matter. A timely petition
for review was filed.

The commission has considered the petition and the positions of the parties, and it has
reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees
with the decision of the ALJ, and it adopts the findings and conclusion in that decision
as its own, except that it makes the following modifications:

1. The following paragraph is inserted after the second paragraph on page three of the
appeal tribunal's FINDINGS OF FACT AND CONCLUSIONS OF LAW:

"(4) No evidence was presented establishing the degree to which the majority of
the named individuals performed services for others, although Mr. Ford acknowledged that
at least one of the individuals in question derived approximately 90% of his income from
work performed for him. Under these circumstances, it cannot be found that the individuals
in question were financially independent of Mr. Ford such that they could financially
survive the discontinuation of their relationship with him."

2. The last sentence of the first full paragraph on page five of the appeal tribunal's
FINDINGS OF FACT AND CONCLUSIONS OF LAW is deleted and the following sentence is
substituted therefor:

"Although under the statute the inquiry would stop at that point, the appeal
tribunal notes that if the second prong of the new statutory test were reached, the two
individuals at issue would not have met the statutory requirements imposed by Wis. Stat.
§ 108.02(12)(b)2. a., c., d., f., g., or h."

DECISION

The decision of the administrative law judge is affirmed. Accordingly, Kevin J. Ford is
liable for the payment of additional unemployment contribution taxes as more particularly
set forth in the department's initial determination. This matter is remanded to the
department to redetermine the employer's contribution liability in light of the exclusion
of Bobby Peterson from statutory employment.

Dated and mailed May 29, 1998fordkev.smd : 164 : 8 ET 410 ET 413

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the employer argues that it assumed its sworn
testimony that the individuals were independent contractors would be sufficient and was
unaware that it was assumed to be "guilty" before the hearing even started.
However, for the purposes of the unemployment statute, workers are presumed to be employe
of the entity for whom they perform their services, and the putative employer bears the
burden of presenting sufficient evidence to warrant a conclusion to the contrary. An
employer cannot meet this burden merely by asserting that individuals are independent
contractors. Instead, the employer is required to establish that the individuals in
question satisfy the necessary statutory requirements to be considered other than
employes. While the employer suggests that it was unaware of this requirement and implies
that it was treated unfairly, the employer did receive a hearing notice which specifically
informed it that the standards set forth in Wis. Stat. § 108.02(12) would be applied.
Although it is unfortunate that the employer failed to familiarize itself with the statute
prior to the hearing, this was a matter within the employer's control and is not evidence
of unfair treatment on the part of the department.

Based upon its independent review of the evidence in the hearing record, the commission
must agree with the appeal tribunal that the employer failed to present sufficient
evidence to warrant a conclusion that the individuals in question were not its employes.
While with its petition the employer attempts to present additional evidence in
satisfaction of its burden of proof, the commission is unable to consider that evidence.
As was explained to the employer in the hearing notice, the hearing was the employer's
only opportunity to present evidence in support of its case. Because by law the commission
is required to base its review solely upon the sworn testimony and documentary evidence
which was presented before the administrative law judge, the commission will confine its
review to that evidence which is already in the record and will disregard those factual
assertions and documents which the employer presents for the first time with its petition
for review.

Finally, in its petition the employer explains its ideas as to what constitutes an
independent contractor and how an independent contractor is distinguished from an employe.
However, while the employer's own definition of an independent contractor may be a valid
one, the commission is required to apply the unemployment law as it was written by the
legislature and lacks the authority to deviate from the standards set forth in the
statute. Where the evidence in the hearing record did not establish that the individuals
in question satisfied the statutory criteria to be excluded from coverage, the commission
must conclude that they performed their services as employes of the employer. Accordingly,
the appeal tribunal decision is affirmed.

NOTE: The commission has modified the appeal tribunal decision to include findings
addressing the factor of economic dependence, since the decision contained no specific
findings on that question. The commission has also modified the appeal tribunal decision
to reflect the fact that, in addition to not meeting the statutory requirements of Wis.
Stat. § 108.02(12)(b)2. a., c., f., g., and h., the two named individuals also did not
satisfy that they were responsible for the satisfactory completion of their services.
These modifications notwithstanding, the commission agrees with and affirms the appeal
tribunal decision.